A New Approach to Overcoming the Insurmountable "Watershed Rule" Exception to Teague's Collateral Review Killer

Landes, Ezra D., Missouri Law Review

I. INTRODUCTION

Timing is everything. Just ask Marvin Bockting or Lonnie Burton. Both men are prisoners convicted of heinous crimes. Bockting was sentenced to life in prison for sexual assault of a six-year-old girl, (1) while Burton was given forty-six years for rape, robbery and burglary. (2) Both men, however, were either convicted or sentenced under rules of criminal procedure that the United States Supreme Court finds wholly unconstitutional. (3) Yet, the Court has held that Bockting has no recourse through a writ of habeas corpus. (4) That is because final judgment was entered in his case prior to the Court's landmark holding in Crawford v. Washington, (5) which overruled Ohio v. Roberts (6) in establishing that the Sixth Amendment bars the admission of out-of-court statements unless the declarant is available to testify and can be cross-examined by the defendant. (7) For Burton, it appears equally unpromising. Final judgment was entered in his case before the landmark decision of Blakely v. Washington, (8) which held that the Sixth Amendment requires that absent determinations by a jury, a judge's imposed sentence cannot fall outside of state sentencing guidelines. (9) For both defendants, perhaps the greatest impediment is that while Crawford and Blakely represent "landmark" rulings, (10) neither one appears to be "watershed," (11) as required by Teague v. Lane. (12)

In Teague, the Court effectively barred the vast majority of its new rules from being applied retroactively on collateral review. (13) The Court did, however, carve out two very narrow exceptions. (14) First, new substantive rules can be applied retroactively. (15) Second, new procedural rules that are watershed can be applied retroactively. (16) On fourteen occasions the Court has been asked to determine whether or not a new rule is watershed. All fourteen times the Court has found the rule not to be watershed. (17)

This Article will propose a new approach to overcoming the seemingly insurmountable watershed rule exception. While a single case--such as Crawford or Blakely--may not rise to watershed status, this Article will suggest that a line of cases could be considered watershed. (18) It will be shown that the highly subjective nature of this exception lends itself perfectly to this type of reasoning, and that adoption of this approach would help reconcile some inherent conflicts encountered by the Court whenever Teague retroactivity comes before it. (19)

Part II of this Article will provide the necessary legal framework, by tracing habeas corpus and the issue of retroactivity from the writ's origins through Teague and its aftermath. (20) Part III will then propose the above mentioned "line of cases" approach and consider its potential in light of the Court's recent holdings in Whorton v. Bockting and Burton v. Stewart. (21) Finally, Part IV will conclude the Article. (22)

II. LEGAL FRAMEWORK

A. Origins of Habeas Corpus

The Great Writ of habeas corpus--granting prisoners relief from unlawful imprisonment--finds its origins in English common law. William Blackstone explained the issuance of these writs "on the ground that the 'king is at all times entitled to have an account, why the liberty of any of his subjects is restrained.'" (23) After four centuries of practice, codification finally came in the form of the Habeas Corpus Act of 1679. (24) This Act "enlarged habeas power by authorizing issuance of the writ throughout the realm (not merely in a particular region) and at any time (not just during the court's term)." (25)

The right of prisoners to petition for the writ when being held by federal authorities was adopted by the United States and provided for in the Constitution, which states in relevant part that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (26) Congress ultimately extended this right to state prisoners with the Judiciary Act of 1867. …

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